Page 19 - Litigating in the Land Claims Court: Training Manual

LITIGATION IN IN IN THE LAND CLAIMS COURT TRAINING MANUAL LITIGATION IN IN IN THE LAND CLAIMS COURT TRAINING MANUAL the the the parties agree on terms terms and the the the Director-General approves those terms terms they may be made into an an order of court (ss 18(5) and (6)) The Director-General may appoint a a a a a a a a mediator to to to assist the parties to reach reach agreement agreement (s 18(3)) However if an agreement agreement is not reached within one month of receiving the the the proposal the the the applicant may continue with the the the application (s 18(4)) 49 5 The Referral Phase: If either: (a) the the the owner disputes that the the the applicants are labour tenants (s 17(6)) or (b) the the the owner admits that the the the applicants are are labour tenants but the the the parties are are unable to agree on on “equitable means of of disposing of of the the the application” (either because the the the owner does not make proposals proposals the the the the applicants reject the the the the proposals proposals or attempts to mediate fail) (s 18(7)) then the the the the Director-General “shall” at at the the the request of a a a a a a a party refer the the the application to to the the the Court 49 6 The Adjudication Phase: Once the the the the application has has been referred to the the the the Court Court the the the the Court Court may either hear it it it it or or or refer it it it it to to arbitration (s 19(10)) The arbitrator or or or the the the Court must then adjudicate the the the application and and decide: (a) whether the the the the applicants are are in fact labour tenants and and (b) if they are are the the the the relief to which the applicants are entitled (s 22) 50 As this outline makes clear there are several points at which the the Director-General is is obliged to to take an administrative step to move the the process along For many years starting in in in about 2005 the the Department took the view that it would not process labour tenant claims The Director-General stopped referring applications to to the the the LCC unless compelled to to do so by the the the Court In 2013 there were thousands of labour tenant applications that were unprocessed 51 This led to to the the litigation in Mwelase – which was driven by the the LRC 32 A group of labour tenants on on on Hilton College in Kwazulu-Natal compelled the the the the Director-General to to to refer their applications to to to the the the the LCC But they also sought systemic relief to ensure that the the thousands of other applications would be speedily resolved This culminated in in in in the the the the Constitutional Court approving the the the the decision of the the the the LCC to appoint the the the the Special Master for Labour Tenants The Special Master’s task is to to work with the the Department and the the LCC to to ensure that labour tenant tenant claims are processed as as speedily as as possible Any labour tenant tenant who is having difficulty with their claim should approach the Special Master How is the referral conducted?
52 If the the the Director General refers the the the matter to to the the the LCC what happens next? The notice of referral must be in in line with Rules Rules 40 and 41 of of the the Rules Rules of of the the LCC 53 The The hearing of the the referral application can either be done through litigation or arbitration (s 19(1)) The The Court will look into into combined effect and substance of all agreements entered into into between the person who avers that he he he he he or or or or she is is a a a a a a a a a a labour tenant and and and and his or or or or her parent parent or or or or grandparent and and and and the the owner or or or or lessee of the the land concerned (s 2 (6)) 32 Mwelase Mwelase Mwelase and and and and and and and and and Others Others Others Others v v v v v Director-General Director-General for for for for for the the the the the the the the Department Department Department of of Rural Rural Development Development and and and and and and and and and Land
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Reform Reform Reform and and and and and and and and and and and and Another Another Another [2018] ZASCA 105 2019 2019 2019 2019 (2) SA SA 81 (SCA) Mwelase Mwelase Mwelase and and and and and and and and and and and and Others Others Others v v v v v v Director-General Director-General for for for for for for the the the the the the the the the Department Department Department of of of Rural Rural Rural Development Development and and and and and and and Land
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Reform Reform and and and and and and and Another Another [2019] ZACC 30 2019 2019 2019 2019 (11) BCLR 1358 (CC) (CC) 2019 2019 2019 2019 (6) SA SA 597 (CC) (CC) PAGE PAGE 19